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Senate Weighing New Controls on Foreign Involvement in US Research

MAY 20, 2021
The Senate is considering major expansions to research security policy as part of debate on the Endless Frontier Act, including a proposal to empower the government to block universities from accepting certain foreign gifts and contracts.
Mitch Ambrose headshot
Director of FYI
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Senate Democrats

Senators are proposing major expansions to federal research security policies through provisions attached to the Endless Frontier Act, which the full Senate began debating this week. Proponents of the measures argue that if the U.S. is to substantially increase R&D funding, it must do more to ensure that rival governments, principally China’s, do not reap the benefits.

The bill emerged from the Senate Commerce, Science, and Transportation Committee already bearing blanket restrictions on federal funds supporting researchers who are participating in certain nations’ “talent recruitment programs.” Now, the bill has been bundled into a broader legislative package titled the U.S. Innovation and Competition Act , which contains additional security measures developed by other committees.

These new provisions include ones enabling the federal government to block U.S. universities from accepting certain foreign funding and to deny visas to individuals who are deemed to present a risk of misappropriating “sensitive or emerging technologies.” University groups successfully advocated to modify some provisions before they were added to the bill, but they have warned the addition of other, little-debated measures could undermine support for the legislation.

Senate eyes further reforms to foreign investment reviews

The main provision bearing on foreign funding of universities was first revealed last month by the Senate Foreign Relations Committee as part of its Strategic Competition Act. It would subject some of such funds to review by the Committee on Foreign Investment in the United States (CFIUS), which was currently examines prospective investments in companies and recommends whether the president should block them on national security grounds.

Congress last expanded the CFIUS review process in 2018 to more closely monitor investments involving “critical technologies,” infrastructure, personal data, or real estate. In applying the process to universities, the reviews would be limited to certain kinds of gifts and contracts, including ones related to critical technologies that are valued at more than $1 million. Although the proposal does not identify particular countries as sources of concern, the Strategic Competition Act is generally framed as a measure to counter China.

Sen. Jim Risch (R-ID), the Foreign Relations Committee’s top Republican, has said the provision is his “top priority” in the Strategic Competition Act, citing a desire to help prevent the Chinese government from exerting influence on universities and to address “risks of intellectual property theft.”

A group of university associations has opposed the provision, arguing it would “require expensive and time-consuming reviews of a wide range of university gifts and contracts against unknown and ill-defined criteria by an agency not designed or equipped to carry out this task.” They also argue the uncertainty surrounding what might be subject to review could discourage beneficial arrangements that “have not been shown to be a significant threat to the U.S.”

One of the associations, the American Council on Education, has estimated that about 700 gifts and contracts that were reported to the Department of Education in 2019 could be subject to CFIUS review under the provision. The organization reiterated concerns about the provision in a letter to Senate leaders on Monday, arguing it could impose “huge new compliance costs” and “delay international research collaborations.”

Notably, there is disagreement between Senate committees over whether it is appropriate to expand CFIUS reviews in such a manner. The package includes a contradictory provision developed by the Senate Banking Committee that would restrict CFIUS from investigating foreign gifts and contracts to higher education institutions.

Visa provision narrows while transparency provision expands

The provision expanding the government’s power to deny visas was included in the package via the Safeguarding American Innovation Act, first introduced last year by Sens. Rob Portman (R-OH) and Tom Carper (D-DE). Among its other provisions, that bill would also establish statutory penalties for violations of grantee disclosure policies and lower the minimum value of foreign gifts and contracts that universities are required to report to the Department of Education from $250,000 to $50,000.

Portman has stressed he will not vote for the Endless Frontier Act, which he is co-sponsoring, unless it includes the Safeguarding American Innovation Act, remarking, “We don’t want the money to go in the front door and then China and other countries take it out the back door.”

The version of the bill currently on the floor is substantially different from the one approved by the Senate Homeland Security Committee just last week. The scope of the visa denial authority it grants has been significantly narrowed and it will now automatically expire after two years unless renewed. Meanwhile, the gift and contract reporting provision has been expanded to include a new reporting requirement for funds received by university faculty and staff.

In its letter on Monday, the American Council on Education indicated that its concerns about the bill’s visa provisions had been adequately addressed but expressed opposition to the new reporting proposal, arguing it would “result in collection of an ocean of data, much of it trivial and inconsequential.” ACE also suggested lawmakers limit the lowering of the existing reporting threshold to funds from specific countries of concern.

During the Trump administration, the Department of Education aggressively probed universities’ compliance with the current reporting requirement and suggested further transparency on foreign funding of universities is needed. While some congressional Republicans are continuing to push the matter, ACE argues the existing reporting requirements have long been unclear, that malign influence has never been identified through such reporting, and that requiring more granular information would only make the task harder.

Talent program curbs build on presidential policy

The Endless Frontier Act’s prohibition on federally funded researchers participating in talent recruitment programs is limited to those supported by the governments of China, Russia, Iran, and North Korea. The provision applies to both full and part-time employment arrangements as well as non-monetary forms of compensation, using the definition of recruitment programs established in a White House directive issued on Jan. 14.

The bill specifies that the provision does not apply to “participation in international conferences or other international exchanges, partnerships, or programs, as sanctioned or approved by the federal agency.” For applicants who are participating in such activities, though, the bill would require agencies to provide training on “how to respond to overtures” from recruitment programs of concern.

The White House directive requires that by next January all agencies must expressly prohibit their employees from participating in any foreign talent program, while allowing for exceptions, and states agencies can extend that restriction to contractors. Some agencies have already prohibited their employees from participating and the Department of Energy has extended the restrictions to contractor employees, but notably no science agency has announced a blanket restriction for grantees.

While the Endless Frontier Act restrictions would be limited to programs run by the four nations identified, research funding applicants participating in programs operated by other countries would be required to provide copies of any associated contract to the government. The funding agency would then be allowed to deny funding if it determines the participation conflicts with grant-related obligations or duplicates efforts.

Currently, the White House directive allows for agencies to require such documentation, and the National Institutes of Health is starting to do so this month .

House currently taking narrower approach

If the Senate passes the U.S. Innovation and Competition Act, the package will still need to be reconciled with legislation in the House. As of yet, the House has not moved to develop any comparable legislative package, but it has begun to chart its own course on research security policy.

Last week, the House Science Committee advanced a bipartisan bill to update policy for the National Science Foundation that includes far less expansive research security provisions than the Endless Frontier Act, though there are some similarities. For instance, both bills would codify NSF’s recently created research security office in statute and establish a non-governmental organization focused on improving analysis of research security risks.

The committee also added a provision that authorizes NSF to require grantees to provide copies of foreign grants and employment contracts on request and permits the agency to modify or terminate grants if it determines the recipient has competing or duplicative obligations.

The amendment was cosponsored by Reps. Mike Waltz (R-FL) and Bill Foster (D-IL), a former Fermilab physicist, who said he believes that such grant revocation actions should occur “very rarely.”

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